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February 7, 2012

[The cases go to the
heart of the powers that have given the ISI such an ominous reputation among
Pakistanis: its ability to detain civilians at will, and its freedom to meddle
in electoral politics. They come at the end of a difficult 12 months for the
spy service, which has faced sharp criticism over the killing of Osama bin
Laden by American commandos inside Pakistan and, in recent weeks, its role in a
murky political scandal that stoked rumors of a military coup.]

By Declan Walsh

Daniel Berehulak/Getty Images

Iftikhar Muhammad Chaudhry, center, Pakistan's chief justice,

greeting supporters in 2009.

LAHORE, Pakistan — Long unchallenged, Pakistan’s top spy agency faces a flurry of
court actions that subject its darkest operations to unusual scrutiny, amid
growing calls for new restrictions on its largely untrammeled powers.

The cases against the
agency, the Inter-Services
Intelligence Directorate, have uncertain chances of success,
analysts say, and few believe that they can immediately hobble it. But they do
represent a rare challenge to a feared institution that is a cornerstone of
military supremacy in Pakistan.

In the first case, due
for a hearing on Wednesday, the Supreme Court has ordered the ISI to produce in
court seven suspected militants it has been holding since 2010 — and to explain
how four other detainees from the same group died in mysterious circumstances
over the past six months.

The second challenge,
due for a hearing on Feb. 29, revives a long-dormant vote-rigging scandal,
which focuses on illegal donations of $6.5 million as part of a covert, and
ultimately successful, operation to influence the 1990 election.

The cases go to the
heart of the powers that have given the ISI such an ominous reputation among
Pakistanis: its ability to detain civilians at will, and its freedom to meddle
in electoral politics. They come at the end of a difficult 12 months for the
spy service, which has faced sharp criticism over the killing of Osama bin
Laden by American commandos inside Pakistan and, in recent weeks, its role in a
murky political scandal that stoked rumors of a military coup.

Now its authority is
being challenged from an unexpected quarter: the chief justice, Iftikhar Muhammad Chaudhry.
Only weeks ago, Justice Chaudhry, an idiosyncratic judge, faced accusations of
being soft on the military when he inserted the courts into a bruising battle
between the government and army.

Now Justice Chaudhry
seems determined to prove that he can take on the army, too.

“This is a reaction to public
opinion,” said Ayaz Amir, an opposition politician from Punjab. “The court
wants to be seen to represent the popular mood.”

The court’s daring move
has found broad political support. Last Friday, Chaudhry Nisar Ali Khan, the
leader of the opposition in Parliament, compared the military to a “mafia”
during a National Assembly debate about the plight of the four detainees who
died in ISI custody.

On Saturday,
Jamaat-e-Islami, Pakistan’s largest religious party, tabled a proposed law that
would curtail the ISI’s powers of detention — a symbolic act, given the party’s
limited support base, but nonetheless a significant one.

Wednesday’s court
hearing could be a significant step for the “disappeared” — hundreds of
Pakistanis who have vanished into ISI custody over the past decade, amid
allegations from human rights groups of torture and extrajudicial executions.

The case concerns the
plight of 11 men accused of orchestrating three major suicide attacks against
army and ISI bases from November 2007 to January 2008. The men were tried by an
antiterrorism court and acquitted in April 2010, only to disappear moments
after their release from jail.

Months later, the men
turned up in ISI custody, and then they started to die. One detainee died last
August and two more in December, within 24 hours of each other. Then on Jan. 21
a fourth man, 29-year-old Abdul Saboor, was declared dead. An unidentified ISI
official called the detainee’s brother, Abdul Baais, with the news.

“I stopped my car and
started crying,” Mr. Baais, recalled in an interview in Lahore, the capital of
Punjab, where he runs a store that sells Islamic texts.

The ISI directed Mr.
Baais to a fuel station on the outskirts of Peshawar, the capital of
Khyber-Pakhtunkhwa Province, formerly North-West Frontier Province, where he
found his brother’s body lying in an ambulance.

“His body was cold as
ice and thin as a crow,” said Mr. Baais, producing a flush of photographs that
showed an emaciated corpse with long, scarlet welts across the back.

Mr. Baais said he
believed that his brother, whose corpse weighed just about 66 pounds, had been
poisoned to death. But he said the family had wanted to bury his brother
quickly, and no autopsy was done.

Now he fears that two
other brothers, Majid and Basit, who are in ISI custody in connection with the
same bombings, could face a similar fate. “They could be next to die,” he said.

A senior security
official, speaking on the customary condition of anonymity, gave a different
version of events. He admitted that the 11 men had been in ISI custody but
insisted that they had been legally detained. He said they had died of natural
causes, including heart disease and hepatitis.

He produced a document
detailing their alleged roles of in the 2007 and 2008 bombings — Mr. Saboor and
his brothers procured the vehicles that were used in the attacks, he said — and
blamed Pakistan’s weak criminal justice system for their failed prosecutions.

“These guys are known
terrorists, yet now they are being presented as victims,” the official said. “All
of them admitted their crimes in 2008, so there was no need to torture them —
they had already confessed.”

The Supreme Court has
thus far been unsatisfied by ISI explanations, and has demanded further
details, raising hopes among campaigners for the fate of at least 380 people
thought to be still in ISI custody.

An even sterner test of
the Supreme Court’s resolve may lie in the second case facing the ISI, known as
Mehrangate.

The case dates from
1996, when the Supreme Court established that the ISI had distributed the
equivalent of $6.5 million through Mehran Bank to a right-wing political
alliance before the 1990 election. Lt. Gen. Asad Durrani, who was the head of
the ISI at the time, told the court that the purpose of the donations was to
defeat the incumbent prime minister, Benazir Bhutto, whom the army deeply distrusted.

“It was a practice
within the ISI to support candidates during the elections,” he said at the
time.

Despite the startling
evidence, the Mehrangate case languished in the courts for years, presumably
out of deference to military sensitivities. It suddenly resurfaced last month
at the court’s instigation, much to the surprise of the retired air force
officer who brought the original case.

“I had written to the
Supreme Court again and again over the years, with no reply,” said Asghar Khan,
a retired air marshal who is now 91. “So I’m very glad they’ve taken this up
now. I hope they do something.”

The Feb. 29 hearing into
Mehrangate has the potential to open a political Pandora’s box. The former ISI
chief, Mr. Durrani, now a prominent media commentator, could be exposed to
prosecution; among the beneficiaries of the ISI slush fund is the opposition
leader, Nawaz Sharif. If allegations that he pocketed $1.6 million are proved,
he could be barred from public office.

Yet the prospects for
any real drive against the ISI remain poor. Last month a commission of inquiry,
headed by a Supreme Court justice, issued its report into the death of Syed
Saleem Shahzad, an investigative reporter who was killed last May.

Although the ISI bore
the brunt of accusations at the time, the commission said it could not identify
a culprit; Human Rights Watch accused the commission of giving the ISI “a free
ride.”

“It illustrates the
ability of the ISI to remain beyond the reach of Pakistan’s criminal justice
system,” said Brad Adams, the Asia director at Human Rights Watch.

Kamran Shafi, a former
army officer who has been an outspoken critic of the ISI, said he was skeptical
that Pakistan’s spymasters could be held to account. “I’d be surprised if this
amounts to anything more than window-dressing,” he said.

Others counseled
patience, saying that the case could be a harbinger of changes in the
military’s relationship with power and its own people. A vigorous media, the
criticisms over the Bin Laden killing, and the military’s failure to mount a
coup in recent weeks, signal that things may be changing in Pakistan, they say.

“Mehrangate will be the
litmus test of the Supreme Court’s resolve,” said Mr. Amir, the opposition
politician. “Thus far its bark has been worse than its bite. If there’s a new
attitude, we’ll see it in this hearing.”